Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A web page and press ad for a food supplement, Diabetone, from Vitabiotics Ltd:
a. The website for Vitabiotics, www.vitabiotics.com, included a web page in the "Shop Online" section for "Diabetone Original" which stated "Diabetone is specially formulated with nutrients to help safeguard your daily nutritional requirements, with particular relevance to people with diabetes. These include includes [sic] Chromium which contributes to the maintenance of normal blood glucose levels plus biotin, which contributes to the normal functioning of the nervous system". A picture of the pack was shown, on which text included "suitable for people with diabetes".
b. A national press ad included text that was headed "Diabetone Specialist nutritional tablets". Further text included "Also includes Chromium which contributes to the maintenance of normal blood glucose levels". The words "normal blood glucose levels" also appeared on the pack shot of the product. Small print stated: "FOOD SUPPLEMENT. Diabetone is not a treatment for diabetes".
Issue
The ASA received two complaints:
1. one complainant challenged whether the reference to diabetes in the website (a) breached the Code, because they believed it implied the product could treat a disease; and
2. one complainant challenged whether the presentation of the claim "normal blood glucose levels" and the product name "Diabetone" in ad (b) breached the Code, because they believed it implied that the product could prevent, treat, or cure disease.
Response
1. Vitabiotics Ltd said the claim "Diabetone is specially formulated with nutrients to help safeguard your daily nutritional requirements, with particular relevance to people with diabetes" appeared on the shopping page of their website only, which had not been updated for some time, and was not repeated on the main Diabetone product information pages or in their press advertising. They said it was widely accepted that wording such as "suitable for" or "with particular relevance to people with diabetes" was not medical per se. They said that a wide range of food products had commonly been marketed at people with diabetes, and provided examples of ads for diabetic foods. They said that ad (a) made clear that the product was a food supplement, rather than a medicine. However, they said that they had removed the claim from the web page and would not repeat it.
2. Vitabiotics said that 'Diabetone' was a registered trade mark and had been in use for over a decade before 1 January 2005 so was permitted under Article 28 of the NHCR to be used until at least 2022. Even after that point its use would be permitted, provided it was accompanied by a relevant authorised claim. They provided evidence to demonstrate that the product name 'Diabetone' had been in use prior to 2005. They said that the claim "Chromium contributes to the maintenance of normal blood glucose levels" was an authorised health claim. They said that it was therefore acceptable to use both the product name and the health claim in question. They said there was nothing in the ad or its presentation to imply that Diabetone was anything other than a nutritional food supplement, supported by an authorised non-medicinal health maintenance claim. They said the only reference to diabetes was in the disclaimer "FOOD SUPPLEMENT. Diabetone is not a treatment for diabetes". They said they were willing to make changes to the ad if it was considered necessary.
Assessment
1. Upheld
The ASA considered that in the context of a website for a food supplement the claim "with particular relevance to people with diabetes" would be understood by consumers to mean that taking the product could be particularly beneficial to people with diabetes and therefore treat the condition. We considered that presenting the claim in combination with the product name "Diabetone" and the authorised health claim "includes Chromium which contributes to the maintenance of normal blood glucose levels" also added to this impression. We also considered that, in the context of the ad, the claim "suitable for people with diabetes" implied that the product could treat diabetes, rather than that it was merely able to be taken by diabetics. The Code stated that it was not acceptable to state or imply that a food could prevent, treat or cure a human disease and we therefore concluded that the claims breached the Code.
On this point ad (a) breached CAP Code (Edition 12) rule 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission (Food, food supplements and associated health and nutrition claims).
2. Not upheld
We considered that the product name "Diabetone" was an implied health claim, but that it did not imply the product could prevent, treat or cure disease. The advertiser had supplied evidence that the product name "Diabetone" had been in use prior to 2005. We understood that if a brand name or trade mark of a product implied a nutrition or health claim they did not have to be in the EU Register of permitted nutrition or health claims, but they must be accompanied by a prominent, related, authorised and listed claim and the claim must be relevant to the trade mark or brand name. However, trademarks or brand names that existed before 1 January 2005 did not have to comply with this requirement until January 2022. We therefore understood that Vitabiotics were allowed to use the product name Diabetone, and were not required to accompany it with a relevant authorised health claim. However, we noted they had chosen to include the claim "Also includes Chromium which contributes to the maintenance of normal blood glucose levels" in the ad, which was an authorised health claim and so permitted to appear in ads for products containing chromium. We therefore considered that both the use of the claim "normal blood glucose levels" and the product name "Diabetone" complied with the Code. We noted the ad also stated "Diabetone is not a treatment for diabetes", which we considered was not a health claim and was merely a factual statement that the product was not a treatment for diabetes. We therefore concluded that the ad did not breach the Code.
On this point we investigated ad (b) under CAP Code (Edition 12) rule 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission (Food, food supplements and associated health and nutrition claims), but did not find it in breach.
Action
Ad (a) must not appear again in its current form. We told Vitabiotics Ltd to ensure they did not state or imply their food supplement products could prevent, treat, or cure disease.
